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IP Australia Response to Submissions on Part 2 Exposure Draft Released

30th October 2018

IP Australia has now released its response to submissions received in respect of the exposure draft of the Intellectual Property Laws Amendment Bill (Productivity Commission Response Part 2 and Other Measures) Bill 2018...

The main focus in the Exposure Draft of the Bill and the associated submissions was:

Amending inventive step requirements for Australian patents
Introducing an objects clause into the Patents Act 1990
Phasing out of the innovation patent system

While still being committed to the Government’s aim of aligning Australia’s inventive step requirements with Europe, IP Australia agrees with submissions to the effect that the proposed changes will not achieve the intended outcome of sufficiently raising the threshold for inventive step. Similarly it considers that further consideration and consultation on the associated changes to the definition of prior art base are also warranted.

IP Australia found no good reason to remove or amend the proposed introduction of an object clause, instead finding that the current text of the objects clause strikes an appropriate balance between the Productivity Commission’s recommendations and the feedback from stakeholders. IP Australia considered that the term technological innovation would not be construed narrowly and would not interfere with the manner of manufacture test for patentable subject matter. While its introduction might create some short term litigation uncertainty, the longer term benefits of the clause will override those.

IP Australia proposes to proceed with the abolition of the innovation patent and sees no merit in having a transitional phase out period.

IP Australia also considered that the proposed changes to Crown use and compulsory licensing provisions should in principle be implemented, although the compulsory licensing provisions would require further technical changes to effect that.